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BULLETIN No. 1 



The Pueblo Land 
Problem 



PUBLISHED AND DISTRIBUTED BY 

The New Mexico Association on 
Indian Affairs 

SANTA FE, NEW MEXICO 



Collected set 



"Ha. | 



Gift 

National League of 
Women Voters 

SEP - 9 1936 



FOREWORD 

This Bulletin is issued by the New Mexico Association on Indian 
Affairs as an historical statement of law and fact which must serve 
as a basis for any proposed Pueblo legislation. It is in the nature 
of an open letter, which we hope will elucidate the complex Pueblo 
land problem and unite all friends of the Indians in a co-operative 
effort toward constructive legislation for the Pueblos. 

The policy of the Association was fully set forth in the official 
Blue Book published last year in connection with its fight on the 
defeated Bursum Bill, in which it was stated that "Congressional 
action is required, but it must be action based upon fairness to both 
sides and not action favoring one side as against the other." 

The New Mexico Association will welcome any criticism of 
fact or policy indicated in this outline, if such criticism is based 
upon supportable argument or evidence, and will be guided thereby 
in its recommendations for constructive legislation at the coming 
session of Congress. 



(Signed) MARGARET McKITTRICK, Chairman. 

JAMES L. SELIGMAN, Vice-Chairman. 
B. J.. 0. NORDFELDT, Secy.-Treas. 

GUSTAVE BAUMANN, 
WITTER BYNNER, 
WM. P. HENDERSON, 
SARA W. McCOMB, 
FRANCIS C. WILSON, 

Executive Committee. 



THE PUEBLO LAND PROBLEM 

i. 

HISTORY 

The present Pueblo land conflict is the result of seventy-five 
years of neglect — a neglect which the next session of Congress has 
the power to rectify by just legislation. 

The Treaty With Mexico, 1848 

To understand the situation, it is necessary to review briefly 
the history of the Pueblo land grants from the time when the United 
States, by formal treaty with Mexico, assumed possession of terri- 
tory now included in New Mexico, Arizona and California. Under 
the Treaty of Guadaloupe Hidalgo, ratified in 1848, the United 
States guaranteed the protection of all civil and property rights of 
residents of the Mexican Republic, who, by the terms of the Treaty, 
were to remain under the jurisdiction of the United States. Article 
IX of the Treaty reads as follows : 

" Mexicans who, in the territories aforesaid, shall not 
preserve the character of citizens of the Mexican Republic, 
conformably with what is stipulated in the preceding ar- 
ticle, shall be incorporated into the Union of the United 
States, and be admitted at the proper time (to be judged 
of by the Congress of the United States) to the enjoyment 
of all the rights of citizens of the United States, according 
to the principles of the constitution; and in the meantime 
shall be maintained and protected in the free enjoyment of 
their liberty and property, and secured in the free exercise 
of their religion without restriction." 

The subsequent confirmation by Congress of the Pueblo grants, 
secured under Spanish and Mexican sovereignties, did not represent 
a .gift from Congress to the Pueblo Indians but was a specific ful- 
fillment of this treaty obligation. 

Prior, however, to the date of the Treaty of Guadaloupe Hi- 
dalgo, certain settlements of non-Indians had been made within the 
boundaries of the Pueblo grants, and these settlements existed by 
virtue of Spanish or Mexican grants, or by virtue of gift, compact or 
purchase from the Pueblo Indians. (Several of the larger towns 
within Pueblo grants, such as Taos and Bernalillo, originated from 
such grant, compact or purchase.) 

In confirming the Pueblo grants, Congress, therefore, recogniz- 
ing the existence of such valid third party rights, provided for 
them in the quit-claims given to the Pueblos, in the following lan- 
guage : 



4 



"This confirmation shall only be construed as a re- 
linquishment of all title of the United States to any of said 
lands, and shall not affect any adverse valid rights, should 
such exist.' ' 

If, at the date of confirmation of the grants to the Pueblos by 
the United States, provision had been made for the adjudication 
and settlement of these conflicting Indian and non-Indian claims, 
this particular feature of the present problem would have been dis- 
posed of. As it is, there exists this class of non-Indian claimants 
to Pueblo lands, whose title the United States could not, and can not 
extinguish, since these titles, like those of the Pueblo grants, are 
superior to American sovereignty and are guaranteed equal pro- 
tection by the terms of the Treaty of Guadaloupe Hidalgo. 

The Crux of the Problem 

But, in addition to this class of non-Indian claimants, we have 
today a large body of non-Indian settlers on the Pueblo grants who 
hold their lands by virtue of claims originating since 1848. And 
the question as to how these claims were acquired represents the 
crux of the Pueblo land problem. 

To answer this question, we must go back to the Organic 
Act creating the Territory of New Mexico. This act was passed by 
Congress in 1850, and by its provisions all the lands within the terri- 
tory, apart from Indian reservations and the public domain, were 
placed under territorial jurisdiction, without excluding the Pueblo 
grants from such jurisdiction. Consequently, due to the failure of 
Congress to make such exception, the Pueblo grants, not being 
reservations, became subject to the operation of Territorial laws, 
and continued so for sixty-two years. 

Pueblo Land Status Till 1912 

Meanwhile, the Bureau of Indian Affairs, soon after the signing 
of the Treaty of Hidalgo, assumed to a certain extent an adminis- 
trative guardianship over the Pueblo Indians, and by course of 
conduct these Indians thus became wards of the government, as they 
have remained ever since. 

As regards the land status of the Pueblo Indians, however, it 
was held in effect both by the territorial courts and by the United 
States Supreme Court, that, since the United States had not reserved 
any Federal jurisdiction or control over the Pueblo grants, these 
grants were therefore by the terms of the Organic Act subject to 
all territorial laws, including those of adverse possession. 

In this connection it must be borne in mind that the status of 
the property rights of the Pueblo Indians is distinctly different from 
that of Indians living on Executive Order or Treaty Reservations 
where title is still held in trust by the United States. Against these 



5 



Reservation Indians, as against Indians holding restricted allot- 
ments, no plea of adverse possession nor of laches can be main- 
tained, since neither plea can be asserted against the Government. 
When, however, the Government has relinquished all title to and 
has no pecuniary interest in the lands of its wards, and when these 
lands are not, by specific legislation, retained under Federal juris- 
diction, it has been decided by the United States Supreme Court 
that the Government has no interest which entitles it to maintain 
a suit brought in connection with such lands. (United States v. 
Waller, 243 U. S. 452.) Congress can authorize the United States 
to bring such suits, but in that event the United States, acting for 
the Indians by Congressional authorization, can in the case of their 
lands, assert no greater rights than the Indians themselves. When, 
in such suits, laches or statutes of limitation can be asserted against 
the titles of the Indians, they can also be urged against the Govern- 
ment. (Folk v. U. S. 233 Fed. 177, 192; C. C. A. Eighth Circuit.) 

Such has been the decision of the courts of the United States in 
regard to the property rights of other tribal or individual Indians, 
who like the Pueblos are still technically wards of the Government 
but who like them have been given title in fee to their lands without 
restriction. 

Power of Congress 

As regards the Pueblo land grants, it might have been asserted 
that any restriction placed upon their titles would have been a 
violation of their rights under the Treaty of Guadalupe Hidalgo. 
But it was still within the Constitutional power of Congress, through 
appi*opriate legislation, to protect these grants against aggressions 
which, under the territorial law, might operate to their disadvan- 
tage, as in fact they did. 

The Joseph Case, 1877 

In 1877 the case of United States v. Joseph (94 U. S. 614), 
brought to enforce a Federal penalty against a trespasser on the 
Taos Pueblo grant, the Supreme Court decided that the Pueblo 
Indians were not tribal Indians within the meaning and intent of 
federal statutes applicable to tribal Indians whose title was re- 
tained in trust by the United States, and that the claim of this set- 
tler must be tried out under territorial law. After discussing the 
terms by which the Pueblos hold their lands, the Court said : 

"It is unnecessary to waste words to prove that this 
was a recognition of the title previously held by these peo- 
ple, and a disclaimer by the government of any right of 
present or future interference, except such as would be 
exercised in the case of any individual holding by com- 
petent and perfect title in his individual right. 



6 



"If the defendant is on the lands of the Pueblo, with- 
out the consent of the inhabitants, he may be ejected or 
punished civilly, by a suit for trespass, according to the 
laws regulating such matters in the Territory. If he is 
there with their consent or license, we know of no injury 
which the United States suffers by his presence, nor any 
statute which he violates in that regard." 

In other words, this decision established the fact that the Pueblo 
lands were under Territorial jurisdiction; and — in the absence of 
Congressional action— this decision became the precedent followed 
in all similar cases until the time of the passage of the State Enabling 
Act in 1910. 

Pueblo Land Status After 1912 

The Enabling Act required the Territory at the time it became 
a State (January 6, 1912) to agree with the Government that all the 
land of the Pueblo Indians to which their title had not been ex- 
tinguished on the date when the Territory became a State should 
"be and remain subject to the disposition and within the absolute 
jurisdiction and control of the United States." This act, by re- 
serving jurisdiction over Pueblo lands and excluding them from 
State jurisdiction, automatically removed these lands from the op- 
eration of State laws and made them subject only to Federal law 
and control. The responsibility for protecting such lands after 1912 
was thus placed squarely upon Congress. The compact required 
by the Enabling Act became effective on January 6, 1912, and from 
that date henceforward no claim of adverse possession under State 
laws could be maintained against the Pueblo grants. In the State 
Enabling Act, Congress did what it should have done in the Organic 
Act creating the Territory. Subsequently, the constitutionality of 
the Enabling Act was upheld by the Supreme Court in the case of 
Sandoval v. United States, 1913, (231 U. S. 28). 

Non-Indian Claimants 

But between the dates of the Organic Act and Statehood — from 
1 850 to 1912 — the number and area of non-Indian holdings on Pueblo 
lauds increased to an extent that has, in the case of certain Pueblos, 
menaced their existence by taking from them a large proportion 
of their arable lands, with an attendant loss of water for irrigation, 
upon which the cultivation of their remaining lands depends. 

It must be recognized, however, that a comparatively small 
number of claimants to Pueblo lands whose claims originated sub- 
sequent to 1848, are of the "squatter" class. Many of the settlers 
hold their lands by virtue of deeds secured from the Pueblos, 
through direct purchase from individual Indians or community 



7 



grants. Some of the deeds were secured by fraud on the Indians 
and others for an inadequate consideration, but the lands are now 
held for the most part by innocent purchasers for value, or by 
the heirs of the original grantees. 

Moral Responsibility 

Unfortunately, the question whether the compensation was ade- 
quate or inadequate, or whether the titles were, as in known cases, 
originally obtained by fraud, or whether the sale was made by an 
individual Indian without the consent of the Pueblo community, 
could not affect the situation, after that transfer had, through the 
lapse of time, ripened into a perfect title under territorial law. 
This fact emphasizes again the moral responsibility of a great and 
powerful nation, presumably acting as the guardian of a weak and 
dependent people. Not only should the Pueblo grants have been 
protected against encroachments, but the United States should have 
defined its guardianship and should have supervised and protected 
the property interests of its wards to a far greater degree than it 
did. In the matter of encroachments, it may be stated that, although 
the Pueblos as corporations under the Territorial laws (Section 
2784, N. M., Code 1915, construed Lane v. Santa Eosa 249 U. S. 110) 
had access to the courts and could have ejected trespassers by due 
process of law, they were, in reality, helpless to act in their own 
defence, because of their ignorance of our laws and procedure. And 
even in the case of the United States Indian agents and attorneys 
who were empowered to represent the Pueblos, the law was such, 
prior to 1912, that they could achieve little on behalf of their 
clients. From the time of the first Territorial Indian agent, James 
C. Calhoun, appointed in 1848, until today, practically every Indian 
agent and attorney has reiterated a request to the Indian Office 
that the matter of the disputed claims be adjudicated and settled. 
Calhoun recommended in 1850 that a commission be appointed by 
Congress to establish the respective Indian and non-Indian claims. 
After confirmation by Congress of Pueblo grants in 1858, surveys 
were made establishing their boundaries, and upon these surveys the 
Pueblo patents were based; but practically nothing has been done 
by Congress from 1848 to the present day to provide adequate 
methods and means to settle the conflicting third-party claims, and 
no Congressional action prior to the Enabling Act was taken to 
protect the Pueblo grants as confirmed by Congress against subse- 
quent encroachments. In the act creating the Court of Private Land 
Claims (1891), Congress asserted its authority to protect Pueblo 
lands by limiting the jurisdiction of that Court, so that it could not 
confirm Spanish and Mexican claims that would "interfere with 
or overthrow any just and unextinguished Indian title to any land 
or place J1 ; but still no special tribunal was created by Congress to 
say what Pueblo titles had or had not been extinguished. 



8 



Recompense 

The conditions that have arisen resulting from this absence of 
Congressional action represent an injustice and a pecuniary loss to 
the Pueblos for which due recompense should be made. It is a moral 
obligation which Congress should recognize. But, owing to the 
human as well as legal nature of the problem now involved, the 
moral responsibility is not single, but double ; and restitution to the 
Pueblos in any form that it may take must be made without in- 
justice to the settlers on Pueblo grants, who in the majority of cases 
hold their lands in good faith, and who have, moreover, under Terri- 
torial law, acquired vested property rights which may not be im- 
paired or destroyed. 

What, then, is the solution of this very intricate human and 
legal and moral problem? 

II. 

SOLUTION 

As an attempt towards such solution, the Bursum Pueblo Land 
Bill (S. 3855), defeated last winter, was shown in both the Senate 
and House Committee hearings to be a manifestly unfair piece of 
legislation, against which the public was justly aroused. It was com- 
pletely one-sided in giving to the non-Indian claimants practically 
everything claimed, without any possibility of redress by the Pueblos 
or by the Government in their behalf. This bill is now dead. 

The Lenroot Substitute. 

The Lenroot Substitute, which was reported out of the Senate 
Sub-Committee, retains the Senate number of the original Bursum 
Bill ; but, from that point on, all similarity between the two bills ends. 
In fact every word of the original Bursum Bill was stricken out, 
and even the title was amended. The Lenroot Substitute passed 
the Senate, but did not come to a vote in the House, owing to lack 
of time. The Lenroot Bill was an attempt to legislate in conformity 
with the facts and the law set forth in the foregoing historical 
survey. 

Compensation 

As it stands, the bill represents in principle a just and equitable 
solution of the conflicting land titles ; but due to the nature of the 
Committee in which the bill originated, it could carry no appropria- 
tions for recompense to the Indians, for the arable and other lands 
lost to them because of the perfection of non-Indian titles against 
them under Territorial laws. The question of compensation was 
fully discussed in the Senate hearings, and it was understood that, 
in the event of the reporting out from this Committee of a bill de- 



9 



voted wholly to the settling of the disputed land titles, a second bill 
providing a method for arriving at adequate compensation to the 
Indians would be presented through the proper Committee in the 
House or Senate. 

It has now become clear that no compensation can be made until 
the extent of compensation which both the Indians and the settlers 
may be entitled to receive shall have been officially determined and 
presented to Congress. 

Thus, the Commission should be authorized and directed to 
report to Congress the compensation which both the Indians and 
the settlers may be entitled to receive. No other method of arriving 
at a solution of this difficult feature of the situation would be 
satisfactory to Congress, nor could compensation be expected with- 
out the basis of the findings of such a commission on the subject. 

Statutes of Limitation. 

As regards the statute of limitation section of the Lenroot 
Substitute, it has been shown above that the non-Indian claimant 
who can maintain his title under the Territorial adverse possession 
statutes prior to January 6, 1912, has a vested property right which 
may not be impaired or destroyed. This is the principle recognized 
in Section 4 of the Lenroot Bill. It is possible, however, to improve 
this Section so that it will conform more nearly with the complete 
protection of vested rights in both the Indians and the settlers. 
For convenience' sake and to clarify this statement of conditions 
under Territorial laws of settlers claiming rights without color of 
title and those claiming rights with color of title, the discussion 
will be separated and treated in two paragraphs. 

(a) Without Color of Title. Under a law enacted February 1. 
1858, appearing as Section 2938 of the Compiled Laws of 1897 of 
New Mexico, the right to recover lands entered upon without color 
of title but with claim of right was barred after ten years posses- 
sion. (Probst v. Trustees. 129 U. S. 182; Maxwell Land Grant Co. 
v. Dawson, 151 U. S. 586). This law was amended, so as to re- 
quire adverse possession under color of title, by Chapter 63 of 
the Session Laws of 1899, approved March 16, 1899, and thereafter 
under that Section no title to real property could be gained in 
New Mexico without color of title. Thus, to leave undisturbed 
the rights which became vested by entries made under the law 
passed February 1, 1858, ten years prior to the amendment of that 
section in 1899, and at the same time to protect the Indians from 
the assertion of claims of less standing, the limitation without 
color of title but with claim of right should commence with March 
16, 1889, and run continuously to the passage of the proposed bill. 

(b) With Color of Title. Prior to 1912 there were two pertinent 
statutes, one passed originally February 1, 1848, now appearing as 
Section 3364 of the Annotated Codification of 1915, and, Chapter 
63 Session Laws of 1899 referred to in the preceding paragraph, 



10 



now appearing substantially as enacted as Section 3365 of the 
Annotated Codification of 1915. Under the first statute, which 
has been continuously in effect since its passage in 1848, ten years 
possession united with color of title conferred title upon the adverse 
claimant, and under the second, ten years adverse possession with 
color of title united with the payment of taxes by the adverse 
claimant barred the owner from the right to recover. On January 
6, 1912, the Territorial statutes of limitation applicable to real 
property ceased to be effective against the Pueblo Indians. Thus 
to leave undisturbed the rights which have vested under those 
statutes on January 6, 1912, and to protect the Indians from the 
assertion of claims of less standing, the limitations with color of 
title of the proposed legislation should commence on January 6, 
1902, and run continuously to the date of the passage of the Act. 

It will be asked why the limitations should run continuously 
to the date of the passage of the bill and for the information of 
those to whom this question might occur, it may be stated that 
under the Territorial statutes mentioned which operated only to 
bar the right of the fee simple owner to recover, an abandonment 
by the claimant at any time after the statutes have run would per- 
mit the owner to re-enter the land and claim it as his own, and 
thus, an abandonment, if it should be nroven at any time up to the 
passage of the bill, would permit the Indians to reclaim such land 

Safeguards 

Primarily, the limitation section should act as a restricting 
safeguard upon the discretionary powers of the Commission. The 
commission provided for in the Jones-Leatherwood bill, submitted 
by friends of the Pueblos last year, had no check upon its discre- 
tionary powers, and as Senator Lenroot "pointed out in the Commit- 
tee hearings, Congress would never give its consent to a commission 
which could operate without restrictions imposed by Congress. The 
justice of this is evident. Congress would not be responsible for any 
measure which did not insure by its stated provisions "protection in 
law and equity for its wards and for the non-Indian claimants. Any 
proposed legislation on the subject should include this principle of 
restriction upon the power of the Commission. 

By the terms^of the Lenroot Substitute, the Pueblo L?mds Board 
can not approve any non-Indian claim having less standing in law 
and in fact than the limitations section of the bill "provides. The 
Board is required to be unanimous upon every decision and thus a 
difference of opinion upon either law or fact would leave the Indian 
title unextinguished and subject to a final decision in the courts. 

If the finding? of the Commission is against the non-Indian 
claimant, the land is included in the renort to the Attornev General 
as Indian land. The Attornev General is directed to bring a suit 
to quiet title in the Federal Court for the District of New Mexico 



11 



on the lands in the report described as Indian lands. The non- 
Indian claimant therefore has his day in court to determine- 
whether he has a just claim or not, and the usual procedure as to 
appeal is provided for. Where the finding of the Commission is 
against the Indian, the Pueblo involved has no direct appeal from 
the decision, but if such decision should result in taking from the 
Pueblo land to which it had a good and indefeasible title, the 
Pueblo would have its recourse, its day in court, by means of an 
original proceeding in the Federal Court brought to set aside the 
ruling of the Commission. (Lane v. Santa Rosa, 249 U. S. 110). 
If there were anything in the Lenroot Substitute which attempted 
to take away that right of recourse to the courts, it would be 
held unconstitutional. 

It has been suggested that no decision against Pueblo claims 
should be valid without the consent of the Pueblos. It is unthink- 
able to stipulate the Indians' consent to the disposal of such lands 
as may not be legally theirs. Moreover, if the consent of one side 
were required, the consent of the other side would be equally 
necessary for fair action. As a matter of fact, in a judicial de- 
cision, the consent of either party is irrelevant. The court deter- 
mines for both sides, regardless of contesting litigants or their 
wishes. However, by the actual terms of the Lenroot Substitute, 
"any party aggrieved by any final judgment or decree, shall have 
the right to review thorof by appeal or writ of error or other pro- 
cess as in other cases." 

Need of a Commission 

The Commission is a necessary feature of the legislative act, 
since an equitable settlement of the disputed claims will entail actual 
first-hand knowledge of the ground,^ in connection with surveys 
made or ordered made, and an amount of first-hand investigation 
which could not be expected of the courts. The Commission makes 
its findings on the spot, in each respective pueblo, with all necessarv 
witnesses, and without cost to either party. It is believed that 80% 
in number but not in area of the claims will thus be settled without 
cost to either party and without court proceedings. Considering 
these facts, the inquiry conducted by the Commission may be ex- 
pected to obtain for both claimants a fuller measure of human and 
equitable justice than could be obtained through the courts. 

Furthermore, the Commission is necessarv to determine and 
report to Congress, as the courts could not efficiently do. the com- 
pensation which both the Indians and the settlers may be entitled 
to receive. 

Preserving the Pueblo Communities 

Another feature of proposed Pueblo legislation should be a 
practical method by which the Pueblo communities could be pre- 



12 



served as such. In several Pueblos the settlers' claims are within 
the Pueblo plazas, and a possible sale or exchange of such non- 
Indian claims would be to the benefit of both races. Under Section 
13 of the Lenroot Bill, it is provided that an unestinguished Pueblo 
claim within a settlement of valid non-Indian claims may be sold 
by the Secretary of the Interior with consent of the Pueblos' gov- 
erning authorities. A section giving the Secretary of the Interior 
authority to purchase non-Indian claims inside the Pueblo settle- 
ments should also be included; and the Commission should be em- 
powered to report upon these conditions where they exist, with an 
estimate of the cost to purchase non-Indian claims which are within 
Pueblo settlements or are so close thereto as to interfere with the 
Pueblo community life. 

Personnel of the Commission 

The Commission, as provided for in the Lenroot Substitute, 
includes the Secretary of the Interior, the Attorney General of 
the United States, and a third member appointed by the President. 
'.It has been suggested that the Pueblos have a specially elected 
representative on the Commission. In this event, a balancing 
right of special representation would obviously have to be accorded 
the settlers.. But this balance is officially maintained by the pro- 
posed personnel of the Commission : the Secretary of the Interior 
and the Attorney General, with a third member, the Presidential 
appointee ; and the dissent of any one of these three leaves the 
Pueblo title unextinguished and subject to a final decision by 
the Court. Additional representation of the two sides is con- 
ceivable, but would probably only complicate without advancing 
the work of the Commission.. 

Conclusion 

Taking the Lenroot Substitute as a basis, with the added pro- 
visions indicated above and other possible amendments of a con- 
sistent nature, we have every reason to believe that a just and 
equitable solution of the complex Pueblo land problem will have 
been achieved. 

(Signed) ALICE CORBIN HENDERSON, Chairman. 

WITTER BYNNER, 
E. DANA JOHNSON, 
MARGARET McKITTRICK, 

Publicity Committee. 



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